Exploiting The Loopholes – Vickery Street?

When a development application comes in, there are several processes that are legally required to be followed. The application can be rejected or approved under delegated authority or booted up to a full council decision which may also reject, amend, or grant the permit. The developer and/or objectors then have the option of going to VCAT.

At VCAT, there are another series of processes. There can be what is known as a Practice Day Hearing, which is basically to iron out some detail. There is a full hearing where VCAT publishes the decision and objectors are given notice. And there is what is called a compulsory hearing. This is where the problems lie since:

Such hearings are ‘confidential’ and no public record is available

Objectors are ‘ordered’ to appear if they have been part of the initial objection and wish to remain so

Written objections are ignored

The VCAT member is at liberty to issue ‘orders’ after hearing from both sides (and objectors)

In recent times it would appear that Council has managed to use this ‘loophole’ of ‘secrecy’ to avoid a full public hearing and therefore an open and easily accessible record of the outcome. More disconcerting, is that if no objector is party to these compulsory conferences, then any deals made between council and the developer is entirely up to them. History would suggest that council’s performance at these ‘compulsory conferences’ is nothing short of total cave-ins to developers – regardless as to whether or not there have been amended plans submitted.

We find it extraordinary that in the past 3 weeks (from 7/6/2017 to the schedule for the 29/6/2017) Council appears in 16 VCAT sessions. The breakdown of these 16 appearances is:

7 Compulsory Conferences

7 Practice Day Hearings, and only

2 public hearings

A recent example should suffice in illustrating why heading off to a compulsory conference is far from satisfactory to residents. The case we use to illustrate is 24-26 Vickery St, Bentleigh. An application for a 4 storey, 36 apartment development came up for council decision on the 28th June 2016 after being submitted in May 2016. The officer recommendation was for a 4 storey and 33 apartments. There were 10 objections. Councillors, as is their want, decided that instead of a permit for 4 storeys they would reduce this to 3 storeys and 27 units. Remember, we have stated time and again that every single time such a decision has been made, the developer simply goes to VCAT and gets what he wants.

This application of course also ended up at VCAT – BUT first as a listed ‘compulsory conference’. No hearing followed. Unfortunately the objector was not able to attend. This meant that it was council and the developer who appeared. The outcome was that the VCAT member issued an order for a 4 storey development and the original number of dwellings applied for. Adding further insult to injury, was that some of the conditions stipulated by councillors in their decision were now also gone.

Thus a full open hearing was avoided. Since these compulsory conferences are ‘secret’, then no one really knows why the council representative decided to go against a full council resolution and cave-in to the developer.

What is concerning about this tactic is the following:

Countless applications are now being decided in compulsory conferences in favour of the developer

Many of these applications that end up at compulsory conferences have been first decided under Manager delegation. That means no advertising and no-one really gets to know that an application has even come into council. (The Caulfield Village Precinct 2 was a perfect example – rejected outright under ‘Manager’ delegation , a compulsory conference called, and made public only after it was highlighted via a public question that this had occurred. This did ultimately go to a full hearing where the MRC won hands down).

No reasons are published as to why the developer got his permit – hence transparency and accountability are non-existent

More concerning is that cases listed for hearings do not even proceed to this stage but are determined between council and the developer. Most end up with their permits which would indicate that council has agreed in the vast majority of cases.

A few other points are worth making –

When a resident wanted to check on the final permit granted for Vickery Street – to really see whether it was back to 4 storeys, since the member’s order was unclear – they were told by officers that they would have to pay a hefty $70 fee to retrieve the documents from the archives.

Once the resident cited the legislation to council, they did eventually agree to ‘waive’ the ‘fee’ ‘in this instance’. The Planning & Environment Act, 1987, Section 70 grants anybody the right to inspect any permit granted by council for free!!!!!

Council’s regular VCAT Watch, features the cases set down for VCAT. Many involve compulsory conferences that do not proceed to full hearings, yet permits are granted. Even those listed for ordinary hearings don’t always end up at the hearings. And again we find that permits have been granted. Residents should be privy to the reasons for every single decision. That is what transparency and accountability demands. When council does cave in (and we do not deny that in some instances a developer may have caved in to council’s wishes) then they must be accountable for such actions – especially when this goes against the wishes of the councillor group and a formal council resolution as in the case of Vickery Street.

So, we leave it to residents to decide whether council has conveniently discovered another loophole in the legislation and is using it to full advantage without ensuring full transparency and accountability to those who pay the bills – us!

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5 Responses to “Exploiting The Loopholes – Vickery Street?”

I thought that compulsory conferences were supposed to be for major cases. A normal thirty unit development wouldn’t classify as a major case I’d say. Another thing I notice is only a month’s wait for the developer to get his application up for council decision. That’s very very fast when others wait for much longer. A curious case for sure.

Under the S.52(1A) loophole, although Council doesn’t have to give notice, it isn’t prohibited from doing so. The even bigger problem is with VCAT. S.83B deals with “Notice if permit application was made without notice” concerning Reviews by VCAT.

S.83B(1) states “If the President of the Tribunal is satisfied that notice of an application for a permit was not given or that notice is not adequate, he or she may direct the responsible authority, at the expense of the applicant for review, to give or publish notice of the application for review to the persons, in the manner and within the time specified by the President”.

It would appear the President of the Tribunal is failing to ensure appropriate notice is given, probably with an utter lack of transparency or accountability. For each of the cases cited, is there any evidence the question of notice was even considered?

Similar instance is Amendment .143 80-100 McKinnon Rd. Confusion occurred over the abandonment of the proposed MUZ1 to GRZ2 without consulting with the 189 objectors on the latter zoning. This site is huge and should be developed sensitively in order to keep the village feel of McKinnon as stated in Councils draft planning policy.